This just is not right...

[studentspark]

Received this email today...


Dear Sir / Madam,

I was wondering if you provide Electrical Installation Condition Reports (EICR)?

If you do, I think I can help you by providing a subcontracting service for EICR. Often, we find that some electrical contractors simply don't have the manpower or the time to do testing themselves, and that's where we come in.

Our directly employed electricians arrive in plain white, unbranded vans and can act as your staff and wear your company uniforms (if you provide them). We can even emboss your company details on to our high quality test labels and final reports - in short, the whole service can be made to look like it has come directly from your company. All you need to do is take your customer's order, then give us a call, earning you a passive income whilst your own team undertake other projects.

We undertake this sort of subcontracting for many electrical and facilities companies throughout the UK. Most importantly, quality and safety are also our top priorities, which is why we're NICEIC, SAFEcontractor, Construntionline and ISO9001/14001 UKAS accredited.

If this is something which you’d be interested in speaking about, feel free to email me back or call me

 

[ericmark]

I would agree, an EICR is the personal opinion of the inspector, or at least the firm's boss, but if would be clear you have not done the inspection as would be wrong name on NICEIC paperwork.

 

[JohnW2]

I would agree, an EICR is the personal opinion of the inspector, or at least the firm's boss, but if would be clear you have not done the inspection as would be wrong name on NICEIC paperwork.

As you say, provided the person (or, at least, some representative of the company) who undertook the inspection signs the EICR, there would be nothing wrong with the EICR, per se, but the customer could well have been misled as to who was going to do it if "... the whole service can be made to look like it has come directly from your company".

Having said that, I think that, in many contexts and walks of life, work often gets 'subcontracted' without the end-customer/client actually realising that has happened - so, right or wrong, I don't think it's unusual. Indeed, it is common for work that appears to have been undertaken by (employees of) companies I work with to have actually been undertaken by external 'consultants' or sub-contractors they have engaged.

In such situations, I suspect (but don't know for sure) that, in law, quite a lot of the 'responsibility'/liability for what is done rests with the person/company who had a direct relationship with the end-customer/client, even if they have 'contracted out' the work.

Kind Regards, John

 

[ericmark]

A contract is an offer, acceptance for a consideration I was told. So if a customer pays for a company to do an EICR for a fee, if the company does not do the work, then is that a breach of contract?

 

[SUNRAY]

I have been self employed for 16 years, the vaste majority of my work is as temporary staff/subby/agency, whatever term one wishes to use I've been described as such. I've worked for big companies like NG Baily, Laing etc and for one man bands requiring a hand. At one time I had > a dozen different companies T-shirts/hi viz etc but for every one of them as far as the customer is concerned I've been an employee. I've inspected, tested and signed documents as an employee in exactly the same way as a bona fide employee.

Sometimes I've worked for a company who are themselves a subcontractor and even another layer.

To make it even more confusing for a customer I've even worked for 2 different contractors for them, actually at BBC Bush House I've worked for 3 controls, an electrical, 2 refrigeration companies and under my own name. Not far short of that at TV Centre too.

At Morgan Stanley I became a requested person for 2 different AV companies, slightly more complicated there as I was on the books for one company and 'hired out' to a competitor who we had subcontracted to.

At Royal Opera House, because of the way the contracts were written, I worked for the carpenters building the dressing tables/mirrors in the dressing rooms, the M&E contractors, the company installing the cable infrastructure and the AV company installing the show relay.

Inbetween 'proper jobs' I did some express courier work on the books and sometimes they'd ask me to use my own unmarked van [no signwriting] as they worked as subcontractors to a bigger service who in turn were contracting to another service for a particular contract.

Confused yet? Yep me too, sometimes I'd forget which company name I was supposed to use.

So getting back to OP. This sort of arrangement is very normal, one only has to look at companies like BT who contract out whole sections of the service. There is nothing wrong with the subcontractor signing documents for their main contractor. NICEIC etc side of things is easy to sort out.

 

[JohnW2]

A contract is an offer, acceptance for a consideration I was told. So if a customer pays for a company to do an EICR for a fee, if the company does not do the work, then is that a breach of contract?

I'm not completely sure what you're saying/asking ...

One obviously would not normally pay for an EICR before it was done, but if one did, and the EICR was not done (by anyone), then I presume that would be a breach of contract, whether that contract be written, verbal or even just implied (by the payment having been offered and accepted).

However, if you're asking what the position would be if one paid a company to do an EICR and the EICR was done, but not by an employee of the company one had paid (but by someone contracted by them) then, as I said, I think that is a very common situation.

As I said, although the people who do the work may 'appear to be' employees of the company one has instructed and paid, it's far from uncommon that they will actually be people who (as individuals, or via some other company) have been contracted (by the company you have dealt with) to do the work. ... so, in that situation, unless one has a contract which explicitly specifies who will do the work, then, although I'm no lawyer, I wouldn't imagine that there would have been any breach of contract (assuming the work had been done, satisfactorily, by someone).

However, as I said, if the work you had contracted for was not done satisfactorily, then I think you would look for remedy to the company you had dealt with (contracted with and paid), regardless of any sub-contracting they may have done (which is 'their problem/business').

Kind Regards, John.

 

[ericmark]

If I agree to you installing a Bosch electric oven and when it is installed I find you have installed an Indesit then I think I have a right to complain and say I agreed with you to fit a Bosch, in the case of an EICR the quality is dependent on the inspector, if I select a firm or person to do the inspection then I would say I can expect that firm or person to do the inspection.

Taking the Indesit logo off the oven and putting a Bosch logo on instead is not really going to work.

Yes I do see as a company I can employ agency staff who are doing basic the same thing, however in the main you would not use agency staff for inspection and testing, they would be employed to do other work which would free your staff up to do more inspecting and testing. The question is if there is an error and as a result a claim, who pays? Who's insurance covers, and if insurance will not pay out, and you would normally make good out of your own pocket to protect the company name, what then.

 

[JohnW2]

If I agree to you installing a Bosch electric oven and when it is installed I find you have installed an Indesit then I think I have a right to complain ...

Of course, and I would think that would probably constitute a breach of contract (whether written, verbal or implicit) - provided, of course that that contract made it clear that the contract was for installation of a Bosch product.

... Taking the Indesit logo off the oven and putting a Bosch logo on instead is not really going to work.

Indeed not, and it wouldn't surprise me if that added the criminal offence of Fraud, and/or some crime under 'Trading Standards legislation' (e.g. the Sale of Goods Act, or some current equivalent) to the (civil) breach of contract.

... in the case of an EICR the quality is dependent on the inspector, if I select a firm or person to do the inspection then I would say I can expect that firm or person to do the inspection.

Only if the contract (or whatever sort) explicitly states that a specific person, or legal employee of a specific firm, will undertake the inspection - and I doubt that you'll find many contracts which say that (other than in traditional Consultancy Agreements- but even that's changing - see *** below).

I can't recall ever have seen a contract with a company to supply 'consumer services' (traditional 'Consultancy Agreements' were different) which has named the individual who will do the work - so even a reputable firm that I 'trusted' could theoretically send a totally inadequate employee of theirs to do the work.

Yes I do see as a company I can employ agency staff who are doing basic the same thing, however in the main you would not use agency staff for inspection and testing, they would be employed to do other work which would free your staff up to do more inspecting and testing.

It's entirely up to a company to decide how to use 'sub-contractors', 'consultants' and 'agency staff'. What you suggest may be sensible in some situations, but it's far from always the case.

Nearly all of the consultancy work I do for companies (as a non-employee) is very 'high level' work - and the most common reason for my being contracted to do it is because the company does not have enough (if any) adequately/specifically skilled/experienced employees to undertake the work in question.

The question is if there is an error and as a result a claim, who pays?

As I've said, more than once, if things go wrong, then the customer's claim is against whoever they have a contract with. If that company or person sub- contracted the work to a non-employee, then they might, in turn, seek to recover any losses from whoever did the work, but that's not the customer's problem.

[ *** progressive tightening of UK tax legislation, the most recent just a couple of weeks ago, has resulted in a move away from Consultancy/ Service/ Sub-contracting contracts/Agreements which name the person who will do the work, because there is then an (increasing) risk that HMRC will deem that person to be an employee of the company to whom they are supplying services. In the past, I would always have been named but, just a few days ago, I signed a contract which included ....

... XXX is not obliged to provide the services of a named individual in respect of the Services and may provide a substitute to perform the services. XXX acknowledges that YYY has the right to refuse the substitute if in the reasonable view of YYY, the substitutes have insufficient qualifications and expertise to carry out the work. It is also agreed that XXX will remain liable for all acts and/or omissions of any substitute(s) provided

... and note that the last sentence covers what you asked about liability - the contract is between XXX and YYY and, if things go wrong (in the eyes of YYY, the 'end-client'), their claim is against XXX, even if XXX has subcontracted the work to some 'outsider' ('provided a substitute').

Kind Regards, John

 

[studentspark]

I understand the whole sub contracting idea. That might work for big companies. But as a sole trader, the idea of some one going around, basically pretending they work fo me, and I have no idea of their competence, just seems crazy. You have no idea of their abilities, ethics, workmanship, presentation, and honesty. To put your hard built reputation into the hand of a stranger seems mad.
And you know these are going to be 'Drive by' EICRs

 

[JohnW2]

I understand the whole sub contracting idea. That might work for big companies. But as a sole trader, the idea of some one going around, basically pretending they work fo me, and I have no idea of their competence, just seems crazy. You have no idea of their abilities, ethics, workmanship, presentation, and honesty.

Of course. If one is going to sub-contract any work (and, as I keep saying, being at least partially legally responsible for that work), then, regardless of whether one is a company (big or small) or an individual, it is crazy (for the reasons you give) to do so unless one has good reason to be very confident that the work will be done satisfactorily by whoever one sub-contracts to.

However, an awful lot of it goes on. You've only got to look at very big companies (BT, utility companies etc. etc.) and organisations (NHS, government depts/agencies etc.) to see a situations in which an awful lot of what you might think is being done 'by employees' is actually contracted out.

As I've said, it works differently in different walks of life, and is sometimes almost the opposite of what we're talking about here. As I've said, when work is sub-contracted to me by a company, it's quite often because they do not have any employees (at all, or 'currently available') who are adequately competent and/or or adequately specifically experienced.

Kind Regards, John